DAY v. GREY et al
REPORT AND RECOMMENDED DECISION re 1 Complaint filed by ROY A DAY Objections to R&R due by 2/23/2018 By MAGISTRATE JUDGE JOHN H. RICH III. (jwr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROY A. DAY,
LORNA R. GREY, et al.,
ORDER ON MOTIONS FOR IN FORMA PAUPERIS STATUS AND SERVICE OF
PROCESS AND RECOMMENDED DECISION ON 28 U.S.C. § 1915(e)(2) REVIEW
Before me for a second time are the plaintiff’s motions for leave to proceed in forma
pauperis and for aid in serving process on the defendants. See ECF Nos. 2-3. When those motions
initially were referred to me, I stayed this case pending the outcome of the plaintiff’s appeal to the
First Circuit of this court’s dismissal without prejudice of a nearly identical action, Day v. Grey
(“Day I”), No. 2:16-cv-00275-JAW (D. Me.). See ECF No. 12. The First Circuit denied that
appeal, issuing its mandate on December 27, 2017. See ECF Nos. 36-37, Day I. That effectively
lifted the stay of the instant case (“Day II”), paving the way for it to proceed.
For the reasons that follow, I grant the plaintiff’s request for leave to proceed in forma
pauperis, recommend that the court allow the action to proceed after review under 28 U.S.C.
§ 1915(e)(2)(B), and, contingent on the court’s acceptance of that recommendation, grant his
motion for service, which I liberally construe to seek service on all four defendants.
In Forma Pauperis Status
In forma pauperis status is available under 28 U.S.C. § 1915(a)(1). However, section
1915(e)(2)(B) also provides, in relevant part:
[T]he court shall dismiss the case at any time if the court determines that . . .
(B) the action or appeal –
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
28 U.S.C. § 1915(e)(2)(B).
“Dismissals [under 28 U.S.C. § 1915] are often made sua sponte prior to the issuance of
process, so as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Nietzke v. Williams, 490 U.S. 319, 324 (1989); see also Mallard v. U.S. Dist. Ct. S.
D. Iowa, 490 U.S. 296, 307-08 (1989) (“Section 1915(d), for example, authorizes courts to dismiss
a ‘frivolous or malicious’ action, but there is little doubt they would have power to do so even in
the absence of this statutory provision.”)
In his application to proceed without prepaying fees or costs, the plaintiff reports that he
has monthly income of $694.00 in Social Security benefits and $59.00 in Social Security Income
disability benefits, has $10.00 in a bank account, owns a 2016 Chevrolet Spark on which he owes
$15,000.00, has approximately $1,200 in monthly expenses, and has credit card debt of $300,000.
ECF No. 2, Day II. These financial circumstances entitle him to proceed in forma pauperis.
Section 1915 Review
The instant review does not end there, however. As noted above, the statute that provides
for waiver of the filing fee also requires the court to determine whether the plaintiff’s case may
proceed. In other words, the plaintiff’s complaint must be dismissed if the court finds it to be
frivolous or malicious, seeks monetary relief from a defendant who is immune from such relief, or
fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). In this regard,
a pro se plaintiff’s complaint must be read liberally. Donovan v. Maine, 276 F.3d 87, 94 (1st Cir.
While there are some differences between the complaints filed in Day I and Day II,
compare Complaint (ECF No. 1), Day I with Complaint (ECF No. 1), Day II, the complaint in Day
II passes muster for the same reasons as the complaint in Day I, see ECF No. 10, Day I, at 2-4.
Liberally read, the Day II complaint alleges that defendants Lorna R. Grey and Kenneth
Grey, residents of Maine, intentionally drove their vehicle into the plaintiff’s parked vehicle in the
parking lot of the Hudson Library in Pasco County, Florida, on April 29, 2016, causing damage to
the plaintiff’s vehicle and other economic losses as well as mental pain/emotional distress to the
plaintiff; that the plaintiff is a Florida resident; that defendant GEICO General Insurance Company
(“GEICO”), an insurer with a principal place of business in Washington, D.C., is vicariously liable,
as the insurer of the Greys’ vehicle, for all damages caused by the Greys, and directly liable for
retaliating against the plaintiff for filing a state “companion case”; and that defendant 21st Century
Centennial Insurance Company (“21st Century”), the insurer of the plaintiff’s vehicle with a
principal place of business in the state of Delaware, is also vicariously liable for the plaintiff’s
damages as well as directly liable for its breach of contract in concealing the fact that the insurance
policy covering the plaintiff’s vehicle did not entitle him to “direct billing” for a rental car to
replace the damaged, covered vehicle.
Against the individual defendants, the plaintiff seeks $100,000 in compensatory damages,
Complaint, Day II, ¶¶ 4, 17, 20(a); $100,000 for emotional pain and suffering/emotional distress,
id. ¶¶ 18, 20(b), 30; and $100,000 in punitive damages, id. ¶¶ 19, 20(c), as well as an order to cease
and desist from alleged insurance scams, id. ¶ 20(d). On his vicarious liability claims against
GEICO and 21st Century he seeks the same damages, but only if no award is made against the
individual defendants. Id. ¶¶ 26-27, 33.
For 21st Century’s alleged breach of contract, he seeks
$100,000 in compensatory damages and $100,000 for emotional distress. Id. ¶¶ 41(n)-(o). The
complaint implicates this court’s jurisdiction under 28 U.S.C. § 1332, which requires that the
amount in controversy in a case between citizens of different states exceed $75,000.
The complaint’s bare demands for damages do not necessarily meet this threshold, even
though the amount in controversy is generally determined from the face of the complaint, Moss v.
Infinity Ins. Co., Case No. 15-cv-03456-JSC, 2015 WL 6095254, at *3 (N.D. Cal. Oct. 15, 2015).
While the plaintiff seeks significantly less in damages than he did in Day I, the total sought still
may be considered “flagrantly inflated” for a case concerning an accident in which the plaintiff’s
car was parked in a lot at the time of the collision and the complaint does not allege that the plaintiff
sought any treatment for injuries caused by the impact, see 14AA Charles Alan Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice and Procedure (“Wright & Miller”) § 3707, at 747
(2011) (footnote and internal quotation marks omitted), or even that he was in the car at that time.
But see, e.g., Duchesne v. Am. Airlines, Inc., 758 F.2d 27, 29 (1st Cir. 1985) (while unlikely that
plaintiff injured when bag from overhead bin in airplane fell on her head would recover more than
the jurisdictional threshold, case should not be dismissed because such was not legally certain).
When a complaint claims a sum sufficient to satisfy the jurisdictional threshold, a federal
court may dismiss the action only “if it is apparent, to a legal certainty, that the plaintiff cannot
recover” at least the jurisdictional amount. EQT Gathering Equity, LLC, v. Marker, Civil Action
No. 2:13-cv-08059, 2014 WL 3880761, at *2 (S.D. W.Va. Aug. 7, 2014) (citation and internal
quotation marks omitted). Here, the question is whether the plaintiff has alleged sufficient
damages to show that his claims, including the reasonable value of his claims for declaratory and
injunctive relief, Complaint, Day II, ¶¶ 20(d), 22, 41(p), could amount to a value of $75,000 or
more. See Moss, 2015 WL 6095254, at *4; 14AA Wright & Miller § 3708.
The plaintiff may not be able to survive a later dispositive motion or motions on these
grounds, but the allegations in the complaint suffice for purposes of section 1915 review to allege
an amount in controversy of at least $75,000. On the face of the complaint, I cannot say to a legal
certainty that the plaintiff will not recover at least the jurisdictional amount.
Motion for Service on Defendants
The plaintiff’s failure, despite repeated court orders, to supply names and addresses of the
defendants to facilitate his requested service of process on them was a key reason for the dismissal
of his complaint in Day I. See ECF No. 27, Day I, at 1, 6-7. In his motion for service of process
in this case, he rectifies that omission as to the Greys. See ECF No. 3, Day II. Puzzlingly, however,
he neither seeks the court’s assistance in serving GEICO and 21st Century nor indicates that he is
prepared to do so. See id.
For the sake of expediency, I construe his motion broadly and liberally to request service
of process on all four defendants and take judicial notice that the Maine Department of Professional
and Financial Regulation, Bureau of Insurance, lists the following contacts for GEICO and 21st
Century for service of process in this state:
GEICO General Insurance Company
c/o Thompson & Bowie
3 Canal Plaza
Portland, ME 04101-4080
21st Century Centennial Insurance Company
c/o Corporation Service Company
45 Memorial Circle
Augusta, ME 04330-6400
(888) 690-2882 and (302) 636-5454
The motion for service, as so construed, is granted contingent on the court’s acceptance of
my recommendation that the complaint survive section 1915 review. Should the court accept that
recommendation, the United States Marshals Service is directed to serve process on GEICO and
21st Century at the above addresses and on Lorna R. Grey and Kenneth Grey at the address
supplied by the plaintiff, 169 Glenmere Road, Port Clyde, ME 04855. See ECF No. 3, Day II, at
For the foregoing reasons, I GRANT the plaintiff’s application to proceed in forma
pauperis, recommend that the court permit this case to proceed following section 1915 review,
and, should the court accept that recommendation, GRANT the plaintiff’s motion for service, as
construed to encompass all four defendants, and ENLARGE the deadline for service of the
complaint to 90 days from the date of the court’s acceptance of that recommendation.
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 8th day of February, 2018.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
I have also taken judicial notice of Port Clyde’s ZIP code, which the plaintiff neglected to supply.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?